Defamation Privileges and Defenses

As a general rule, if you follow good journalistic practices and standards
-- being thorough, fair, and accurate in what you publish, carefully
attributing your sources and quotes, and not phrasing statements in
such a way as to create implications that you do not intend or do not
have the evidence to support -- this will minimize the likelihood that
you will be successfully sued for defamation (honing these good habits
has other benefits as well, as they will make your work more accurate
and credible).

There are times, however, when even the most careful publisher
can be sued for defamation. In such a situation, a number of defenses
may be available to you depending on what you published and the
source(s) you relied on for the information. The most important defense
is "truth." If the statement at issue is substantially true,
a defamation claim cannot succeed because you have a right to publish
truthful information even if it injures another's reputation. But truth
is not the only defense that may be available. For example, if you
publish a defamatory allegation made by a party in a lawsuit, even if
it turns out that the allegation is false, a defamation claim against
you cannot succeed because you have a right to report on allegations made in court
regardless of whether they are true. Similarly, statements by
legislators on the floor of the legislature, or by judges while sitting
on the bench are typically privileged and cannot support a cause of
action for defamation, even if they turn out to be false.

Sometimes the reliance on these sources may result in the
publication of defamatory falsehoods, but in publishing the information
you are performing the vital civic function of making information
available to the public and of playing a watchdog role with regard to
the government and other interests in society. To deal with the tension
between the possibility of defaming individuals and the importance of
reporting the news and information in a timely manner, courts have
developed a number of defenses which often called "privileges" by
lawyers. Keep in mind, however, the privileges described below are not
available in all circumstances or in every state, so you should also
review your state's specific law in the State Law: Defamation section of this guide.

Possible privileges and defenses include:

Substantial Truth:
"Truth" is an absolute defense to an action for defamation. Even if you
are not sure that what you've published is true, you should read this
section.

Opinion and Fair Comment Privileges:
Statements of opinion generally cannot support a cause of action for
defamation, even if they are outrageous or widely off the mark. A
defense similar to opinion is "fair comment on a matter of public
interest." If the mayor is alleged to be involved in a corruption
scandal, expressing your opinion that you believe the allegations are
true is not likely to support a cause of action for defamation.

Fair Report Privilege:
This very important privilege may apply if you relied on a public
document or a statement by a public official for the incorrect
information, made clear that the public document or statement was your
source, and fairly and accurately used the source.

Neutral Reportage Privilege:
The neutral reportage privilege covers unverified accusations made by
one public figure about another on a matter of legitimate public
interest, such as when a politician who opposes a health care bill says
that the bill's sponsor is taking money from the pharmaceutical
industry.

Wire Service Defense:
If you republish information from a reputable news source (such as the
Associated Press) you may be entitled to the wire service defense if it
turns out that the information was false.

Statute of Limitations:
If the plaintiff has waited too long to file a lawsuit, the defamation
claim might be barred by the statute of limitations, which sets the
maximum amount of time plaintiffs can wait before bringing a lawsuit
after the events they are suing over have occurred.

Did you find what you are looking for?

Need legal help?

Disclaimer

Information in this guide is based on general principles of law and is intended for information purposes only; we make no claim as to the comprehensiveness or accuracy of the information. It is not offered for the purpose of providing individualized legal advice. Use of this guide does not create an attorney-client or any other relationship between the user and the Digital Media Law Project or the Berkman Center for Internet & Society.

Navigation

Copyright 2007-13 Digital Media Law Project and respective authors. Except where otherwise noted,content on this site is licensed under a Creative Commons Attribution-Noncommercial-ShareAlike 3.0 License: Details.
Use of this site is pursuant to our Terms of Use and Privacy Notice.